In re Estate of Cargola

2017 IL App (1st) 151823, 74 N.E.3d 1006

• Court: Appellate Court of Illinois
• Decided: February 17, 2017
• Docket: 1-15-1823
• Status: Unpublished

Opinion

2017 IL App (1st) 151823

SIXTH DIVISION FEBRUARY 17, 2017

No. 1-15-1823

In re ESTATE OF ) Appeal from the ) Circuit Court of ANNE M. CARGOLA, ) Cook County. ) Deceased, ) ) (Donna Lynn A. Knorrek, f/k/a Donna Lynn A. Cargola ) Knorrek, ) ) No. 12 P 5580 Petitioner-Appellant, ) ) v. ) ) Kristen Hoeksema, as Special Administrator of the ) Estate of Anne M. Cargola, and Diane Briese, ) Honorable ) James G. Riley, Respondents-Appellees). ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Hoffmann and Justice Delort concurred in the judgment and opinion.

OPINION

¶1 Following the circuit court of Cook County’s dismissal of her complaint to quiet title,

petitioner-appellant, Donna Lynn A. Knorrek (Knorrek) appeals from that dismissal of her claim

for adverse possession. For the following reasons, we affirm the judgment of the circuit court of

Cook County. 1-15-1823

¶2 BACKGROUND

¶3 This matter appears before us following a probate proceeding for the estate of Anne M.

Cargola (Cargola). Cargola died intestate on August 29, 2007. Cargola had only two heirs: her

two daughters, Knorrek and respondent-appellee, Diane Briese (Briese).

¶4 On September 27, 2012 Briese filed a complaint, seeking appointment as the

administrator of Cargola’s estate. On November 1, 2012, Knorrek filed an objection to Briese’s

complaint and sought appointment of an independent third party as the administrator of the

estate. On November 19, 2012, the circuit court appointed respondent-appellee Kristin

Hoeksema (Hoeksema) as special administrator for Cargola’s estate.

¶5 At issue in this appeal is Cargola’s real property, located at 1 North Braintree Avenue in

Schaumburg, Illinois (the property). Cargola purchased the property in 1991. The title and

mortgage for the property were both solely in Cargola’s name.

¶6 On July 10, 2013, Knorrek filed a three-count complaint in the circuit court of Cook

County for declaratory judgment and to quiet title. Knorrek sought to remove title to the property

from the estate of Cargola and to vest title in Knorrek. Count II of the complaint sought to quiet

title to the property through adverse possession. On September 10, 2013, Briese filed a motion to

dismiss Knorrek’s complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS

5/2-615 (West 2014)). On January 22, 2014, a hearing was held on Briese’s motion. The circuit

court granted the motion without prejudice, allowing Knorrek to amend her complaint.

¶7 On February 20, 2014, Knorrek filed a four-count amended complaint to quiet title for the

property. Count II of the amended complaint again sought to quiet title to the property through

adverse possession.

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¶8 In that complaint, Knorrek alleged the following. In 1991, she was involved in lengthy

and acrimonious divorce proceedings. She sought to purchase the property, but was concerned

that her then-husband would attempt to claim an interest in the property. In an effort to prevent

further litigation in her divorce proceedings, Knorrek and Cargola made an arrangement

regarding the property. They agreed that Cargola would purchase and hold title to the property,

but that Knorrek would be the true owner and possessor of the property. Knorrek transferred the

down payment funds to Cargola, who then made the necessary down payment to obtain the

mortgage, which was in Cargola’s name as the sole borrower. Knorrek has resided at the

property since 1991. Cargola never resided at the property at any time. After the purchase of the

property, Knorrek exclusively paid the mortgage, all utilities, taxes, and other debts and

liabilities associated with ownership of the property. Knorrek reimbursed Cargola for any

payments she made in relation to the property. In 2001 and 2003, the mortgage for the property

was refinanced. During both refinances, both Knorrek and Cargola were listed as borrowers on

the note. Knorrek alleged that she and Cargola both mistakenly believed this arrangement

allowed Knorrek to be the legal owner of the property.

¶9 In Count II of her amended complaint, Knorrek requested that the circuit court find that

she is the legal owner of the property through adverse possession. Knorrek argued that for a

period in excess of 20 years, 1991 through 2014, she had actual possession of the property

openly, continuously, adversely, and under a claim of title which is inconsistent with that of

Cargola, satisfying the elements of adverse possession pursuant to section 13-101 of the

Limitations Act (735 ILCS 5/13-101 (West 2014)). Knorrek claimed she met the hostility

element of adverse possession because Cargola never provided her with permission to reside at

the property.

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¶ 10 On March 5, 2014, Briese filed a motion to dismiss Knorrek’s amended complaint

pursuant to section 2-615 and alleged that Knorrek failed to state a cause of action. In her

motion, Briese argued that Count II of Knorrek’s amended complaint should be dismissed

because Knorrek pled permissive use of the property when she described the agreement with

Cargola. Briese argued that this negated the hostility element required for an adverse possession

claim.

¶ 11 On May 27, 2014, a hearing was held on Briese’s motion. The circuit court granted the

motion with respect to Counts I and II of Knorrek’s complaint, which were dismissed with

prejudice for failure to state a cause of action upon which relief can be granted. The circuit court

denied the motion for Counts III and IV, allowing Knorrek to amend those counts.

¶ 12 On May 27, 2015, the circuit court dismissed Counts III and IV of Knorrek’s complaint,

which dismissed the complaint in its entirety.

¶ 13 On June 23, 2015, Knorrek filed a notice of appeal, challenging the circuit court’s

dismissal of her amended complaint only as to Count II. She argues before us that the circuit

court erred in dismissing her amended complaint because she adequately alleged a claim of

¶ 14 ANALYSIS

¶ 15 We note that we do have jurisdiction to review the circuit court’s dismissal of Count II

from Knorrek’s amended complaint on May 27, 2014, because she filed a timely notice of appeal

following entry of a final order on May 27, 2015, dismissing the amended complaint in its

entirety. See Ill. S. Ct. R. 301 (eff. Feb. 1, 1994).

¶ 16 A section 2-615 motion to dismiss challenges the legal sufficiency of the complaint based

upon defects apparent on its face. 735 ILCS 5/2-615 (West 2014); Khan v. Deutsche Bank AG,

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2012 IL 112219, ¶ 47 (citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006)).

Accordingly, we review the circuit court’s order granting a motion to dismiss, de novo. Id. In

reviewing the sufficiency of a complaint, we accept all well-pleaded facts as true, and we

construe the allegations of the complaint in the light most favorable to the plaintiff. Id.

Dismissing a cause of action pursuant to section 2-615 is proper when it is clearly apparent that

no set of facts can be proved that would entitle a plaintiff to recover. Id.

¶ 17 We note that there are no transcripts in the record for the May 27, 2014, hearing, at which

Count II was dismissed. Ordinarily, in the absence of transcripts, it is presumed that the circuit

court acted in conformity with the law. Watkins v. Office of State Appellate Defender, 2012 IL

App (1st) 111756, ¶ 19. However, we are free under our de novo standard of review to make our

own determinations of law regardless of the presence or absence of transcripts. Id. The sole issue

before us is whether Knorrek adequately pled a claim of adverse possession in Count II of her

amended complaint.

¶ 18 To establish title by adverse possession, the party must possess the disputed property for

20 years pursuant to section 13-101 of the Limitations Act (735 ILCS 5/13-101 (West 2014)).

Miller v. Metropolitan Water Reclamation District of Greater Chicago, 374 Ill. App. 3d 188, 190

(2007). The party must prove that the possession was: “ ‘(1) continuous; (2) hostile or adverse;

(3) actual; (4) open, notorious and exclusive; and (5) under a claim of title inconsistent with that

of the true owner.’ ” Id. (quoting General Iron Industries, Inc. v. A. Finkl & Sons Co., 292 Ill.

App. 3d 439, 441 (1997)).

¶ 19 Briese’s motion to dismiss argued that Knorrek failed to state a cause of action for

adverse possession because she pled facts alleging permissive, not hostile or adverse, use of the

property. To satisfy the hostile or adverse element of acquiring title by adverse possession, a

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claimant need not demonstrate any actual ill will between herself and the true property owner but

merely an assertion of ownership incompatible with any other claim of right. Mann v. La Salle

National Bank, 205 Ill. App. 3d 304, 309 (1990). “Although evidence of the use and control over

land is the typical manner by which any claimant establishes title by adverse possession, it must

be clearly shown that the use of the land was adverse and not merely permissive ***.” Id. (citing

Thorman v. Cross, 185 Ill. App. 3d 590, 595 (1989)). Where the property is used with the

permission of the owner, possession is not hostile or adverse. 527 S. Clinton, LLC v. Westloop

Equities, LLC, 403 Ill. App. 3d 42, 49 (2010).

¶ 20 In her brief, Knorrek argues that Cargola never gave her permission to reside at the

property. She claims that by residing there openly and acting as the property’s owner, her actions

were inconsistent with Cargola’s title so as to satisfy the hostile or adverse element. Knorrek

directs us to a recent case of the Fourth District of this court, Brandhorst v. Johnson, 2014 IL

App (4th) 130923. In Brandhurst, the Fourth District stated “[i]t is inconsistent with a private

party’s ownership of a piece of land for a non-owner to maintain and assert dominion over the

land without any agreement to do so. *** What matters is that plaintiff’s actions were

incompatible with [the owner’s] ownership of the land at issue. (Emphasis added.)” Brandhurst

at ¶ 46.

¶ 21 Knorrek’s reliance on this case is misplaced. Unlike Brandhurst, Knorrek pled facts in

her amended complaint that clearly express an agreement between herself and Cargola. The

amended complaint greatly details the arrangement where Cargola agreed to actually purchase

the property for Knorrek while she was involved in divorce proceedings. Even if the agreement

was initially intended to only be temporary, permission to use land can never ripen into a claim

for adverse possession. Morris v. Humphrey, 146 Ill. App. 3d 612, 615 (1986). Further, in the

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many years since the property was purchased there was ample time to change title from Cargola

to Knorrek, if the divorce proceeding was the reason for vesting title in Cargola.

¶ 22 Despite Knorrek stating in both her amended complaint and her brief that Cargola never

gave her permission to reside at the property, the facts that she pled tell a different story. The

facts show that Cargola consented to Knorrek’s occupancy and possession of the property. It

cannot be said that Cargola would accept reimbursements from Knorrek for expenses related to

the property while not permitting Knorrek to possess the property. The allegations in Knorrek’s

amended complaint are wholly inconsistent with her claim that Cargola did not consent to her

possession of the property.

¶ 23 Additionally, Knorrek pled that the mortgage for the property was refinanced in 2001 and

2003, and that both her and Cargola’s name were on the note each time. While Knorrek argues

that this act led her and Cargola to believe that title had passed to her, we find that argument

perplexing. On the other hand, both Briese and Hoeksema argue that this act of jointly

refinancing demonstrates Knorrek’s acknowledgment of Cargola’s superior title to the property,

and therefore she cannot be an adverse possessor. We agree. The adverse possessor must act

without recognition of the true owner’s superior title to the property. Mann, 205 Ill. App. 3d at

310.

¶ 24 As pled by Knorrek on the face of her amended complaint, Cargola permitted Knorrek to

reside at the property. Even if Knorrek’s actions satisfied all of the other elements of adverse

possession, her use of the property would still be permissive and therefore, not hostile or

adverse. 1 Her failure to plead this element is fatal to her adverse possession claim.

1 After establishing that Knorrek pled facts negating the required element of being hostile or adverse for a claim of adverse possession, there is no need for us to review the other elements

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¶ 25 While we find that Knorrek has failed to meet the strict standards of adverse possession

of the property, we do not opine on whether or not she may be able to proceed through some

other legal means or cause of action.

¶ 26 Accordingly, accepting the facts pled in Knorrek’s amended complaint as true, she has

failed to state a cause of action for adverse possession. Thus, the circuit court did not err in

dismissing Count II of the amended complaint.

¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 29 Affirmed.

of adverse possession as related to this case.

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